Senate Slams WOTUS as 'Extreme Overreach'

In a report released Sept. 20, 2016, the U.S. Senate Committee on Environment and Public Works had some strong words against the expansion of jurisdiction claimed by the Army Corps of Engineers and the U.S. Environmental Protection Agency with regards to the Clean Water Act.

Case studies presented to the committee demonstrate new regulation that defines “waters of the United States” (WOTUS) “will codify many of the most extreme overreaches of federal authority asserted by these agencies.”

In one such case study from 2014, an Indiana farmer cleared trees from his property to expand his farmland. The Corps claimed it destroyed an “ephemeral drainage” that it said was a tributary of a “water of the United States” and did so based on a soil survey and Google Earth aerial photos.

“In this example, the Corps put the burden on the landowner to show that an ephemeral drainage, 118 miles from traditional navigable water and 1.5 miles from relatively permanent non-navigable water did not exist on the property before the trees were removed,” according to the Senate report. “The WOTUS rule would codify this overreach by allowing the Corps to infer the former existence of a stream, with no evidence of a bed bank and ordinary high water mark, relying instead on aerial photographs.”

In an even more extreme example, the Corps asserted jurisdiction over a dirt road that had tire ruts which collected rainwater – and therefore was considered wetlands.

The reach of federal authority claimed by EPA and the Corps is “ominous,” the report concludes.

“Under the rule, to regulate any water that is in a 100- year floodplain and within 1,500 feet of another regulated water, the Corps need only a measuring device and, to regulate any water within 4,000 feet of another water, the Corps need only make the same kind of vague allegations about water retention, water runoff and use as habitat that it used to justify control over the Hawkes property,” the report notes. “With the categorical regulation of ephemeral drains as “tributaries” the Corps and EPA will find the “tributaries” almost anywhere gravity moves water downhill.”

NCGA is asking Congress to take up S. 1140, which president Chip Bowling says would allow EPA, the Corps, farmers and others work together to develop a better WOTUS rule.

“This report suggests that EPA is trying to expand its authority unlawfully and demonstrates that the Waters of the U.S. rule does not work,” he says. “The rule does not provide farmers with the clarity and certainty they need. Let’s work together on a new rule that gives farmers the certainty they need while protecting America’s water resources.”